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IN
THE SUPREME COURT OF JUDICATURE
QBENF
97/1578/C
IN
THE COURT OF APPEAL (CIVIL DIVISION
)
ON
APPEAL FROM THE QUEEN'S BENCH DIVISION
(HIS
HONOUR JUDGE STEPHENSON (sitting as a Deputy High Court Judge
))
Royal
Courts of Justice
Strand
London
W2A 2LL
Friday,
31st July 1998
B
e f o r e
LORD
JUSTICE SIMON BROWN
LORD
JUSTICE JUDGE
LORD
JUSTICE BUXTON
ARMSTRONG
& ORS
Respondents
v.
BRITISH
COAL CORPORATION
Appellant
(Transcript
of the Handed-Down Judgment of
Smith
Bernal Reporting Limited, 180 Fleet Street
London
EC4A 2HD
Tel:
0171 421 4040
Official
Shorthand Writers to the Court)
MR
RONALD WALKER QC, MR RICHARD METHUEN QC and MISS CATHERINE FOSTER
appeared on behalf of the Appellant.
MR
JOHN HENDY QC, MR CHRISTOPHER CARLING and MR IAN SCOTT
appeared on behalf of the Respondent.
J
U D G M E N T
(Draft
for approval
)
Lord
Justice Judge:
This is an appeal by the defendants from the decision of His Honour Judge
Stephenson, sitting as a judge of the High Court, Queen’s Bench Division,
dated 30th September 1997 that they were liable to seven plaintiffs for
personal injuries loss and damage suffered in the course of their employment.
These plaintiffs were Cudlip, Stokoe, Martin, Lamb, Nullis, Carver and Wright.
Claims by two other plaintiffs (Armstrong and Mushens) were rejected. Damages
for each successful plaintiff were separately assessed. Some of these awards
are also challenged.
Liability
The
nine plaintiffs were lead cases, representative of some twenty five thousand
similar claims, brought against the defendants by employees alleging that in
consequence of the defendants’ negligence they developed and suffered
from the condition known as Vibratory White Finger (VWF). The critical
symptoms of this condition, in particular loss and impairment of sensation and
movement in the fingers, are now well known. The condition has two components,
the first, vascular, and the second, more recently understood, sensorineural.
The symptoms are often very minor indeed, limited to either intermittent
tingling or intermittent numbness, and in the context of employees working in
the mining industry, facing constant and major physical danger, trivial. In
some cases however, the condition can become much more serious and involve
permanent discomfort and disability in the digits of each hand. The condition
can occur naturally or arise from constitutional causes (CWF) which it does for
about 4-5% of the overall population. VWF is the manifestation of the
condition brought about by work with powered hand tools through which forceful
vibrations are transmitted to the hands and arms of the operator. The effect
of exposure to such equipment is cumulative, the greater the exposure to
vibration the greater the consequent risk, and the potential risks are
correspondingly diminished by reducing the extent of exposure. Provided the
condition is recognised in its early minor form it will normally be cured by
removing the employee in question from work with vibrating tools. The judge
accepted that
"It
is an impossible task to assess exposure on an annual basis ...... It is clear
that the sooner action is taken to reduce or stop vibration exposure the more
likely the onset of VWF will be avoided or the symptoms cease to progress or
even regress."
The
critical question in the present appeal is the assessment of the degree of
exposure, if any, which may, subject to appropriate precautions for the
continuing safety of the employees, reasonably be permitted.
In
1995 Judge Stephenson began the hearing of the lead cases by considering and
deciding two preliminary issues. Incorporating the answers he provided to the
questions posed to him, in a judgment dated 15 January 1996, he decided that
(a)
by 1st January 1973 the defendants ought to have recognised that work with the
tools complained of in the lead cases gave rise to a foreseeable risk of VWF;
(b)
by 1st January 1975 the defendants ought to have recognised that effective
precautions in the form of warnings, system and routine examination, could and
should have been taken in respect of such work;
(c)
by 1st January 1976 the defendants ought to have recognised that effective
precautions in the form of job rotation could and should have been taken.
The
defendants appealed against these conclusions. During the course of the
hearing they conceded that they never appreciated and did nothing to minimise
or prevent the risk which they should have recognised by January 1973, and that
they had not taken the precautions found should have been taken by January 1975
and January 1976 respectively. They were nevertheless anxious to underline
that the adverse findings were not conclusive on the issue of liability. Only
one of the plaintiffs, Carver, had given evidence. Mr Richard Maxwell QC argued
that he had failed to establish “prolonged and regular exposure to
vibrating tools” which was thought at that time to be a “most
significant feature in any relevant working history”, and further
emphasised that the defendants were not prepared to admit that any of the
plaintiffs actually suffered from VWF. Mr John Hendy QC for the plaintiffs
accepted that the decision in the preliminary issues did not constitute a
finding binding for all purposes in the litigation that any individual
plaintiff had indeed suffered from VWF. He conceded that no assumptions could
be made about the claims made by any individual plaintiff other than those
which had been expressly or by implication decided by the preliminary issues.
The defendants were “entitled to advance any defence in each case where
symptoms developed after January 1975, except ignorance of a foreseeable risk
of VWF, and complete inaction.”
In
deference to the concerns expressed by Mr Maxwell in the course of the argument
I thought it right to indicate a number of areas, which, subject to the
consequences of the decisions in the preliminary issues, remained open.
Accordingly at the end of my judgment in the Court of Appeal (with which Nourse
and Waller LJJs agreed) I said
"The
following questions remain open:
(a)
whether he (each plaintiff) suffered excessive exposure to vibrating tools and
equipment
(b)
whether the defendants negligently failed to take effective precautions to
prevent avoid or reduce such excessive exposure
(c)
whether he suffered occupational white finger in consequence of the
defendants’ negligence.
In
each such case all questions of causation, the quantum of damages (if any) and
limitation remain open for decision."
At
the subsequent hearing before Judge Stephenson (under consideration in the
present appeal) there was a great debate about the effect of this passage.
Although the refinement of argument to which these words - in reality the
single word “excessive” in a forty-two page long judgment - gave
rise may be a tribute to the ingenuity of counsel, the judge summarised their
effect correctly when he said that he did not believe they meant “more
than that it was for each plaintiff to prove his case”, or as he observed
later, that each plaintiff had to show a breach of duty by the defendants. At
the same time nothing in those words could possibly be understood to undermine
or reduce the crucial importance of the findings on the preliminary issues, nor
was it appropriate to consider the issues left open without reflecting on the
issues which had been conclusively decided. Therefore in deciding whether each
plaintiff had proved his case the judge was required to abide by the
conclusions and logical consequences of his findings in the preliminary issues,
and to consider all the evidence bearing on the issue of liability called
before him both at the first and the subsequent hearings.
Exposure
Levels
Judge
Stephenson summarised the rival contentions. Before him the plaintiffs
“took up the position at the outset that the men were at risk and the
defendants did not take steps ....... they should have done, so subject to
proof of causation and limitation, they were entitled to succeed, whatever the
vibration levels. The defendants ....... took up a defensive position behind
the state of knowledge in 1973 and defied the plaintiff to prove that exposure
was excessive, and said that there was no liability .......”. He
rejected the argument that the plaintiffs had to establish “excessive
exposure”, that is, exposure above an established safe limit. He
suggested that the defendants were arguing that “they were under no legal
liability to take these steps because no-one knew what the lower limit was
...... They are saying it is up to the workforce, who did not know that there
was a risk, to prove what it was, and until the plaintiffs do that, they are
perfectly entitled to do nothing until further research, carried out without
their assistance (although as the largest employer of users of vibrating tools
they had been asked to help) established that they were at risk all the
time.” Although this summary did not quite accurately reflect the
argument being advanced by the defendants the issues raised in the appeal are
now too narrow for the point to require analysis.
By
the time the appeal was opened by Mr Ronald Walker QC, who had taken over the
conduct of the litigation from Mr Maxwell, the major issue on liability had
been closely considered and reduced to sensible proportions. The defendants
were prepared to accept that they had correctly been held liable to the seven
individual plaintiffs who were found to have been suffering from VWF consequent
on their employment with the defendants and exposure to vibrating tools after
January 1973. The main issue which Mr Walker wished this Court to resolve was
the basis of the judge’s conclusion on exposure on which the outcome of
many of the other claims depends. He conceded that in the light of their
proved exposure to vibrating equipment after January 1973, arrangements should
have been in place to rotate the jobs of all these seven plaintiffs, with the
exception of Stokoe, and thus reduce their exposure, and that liability was
also established in those cases, including Stokoe, where the judge had found
that a warning would have led the individual plaintiff’s exposure to be
reduced or avoided. Nevertheless Mr Walker contended that further claims could
not be sustained merely because the employee could point to some exposure
beyond the level properly described as “de minimis”. This was
precisely the test held by the judge to be appropriate, and Mr Walker submitted
that he was wrong.
Before
analysing the argument it is important to emphasise that the question under
consideration is limited to possible liability to an employee based on the
negligent failure to reduce exposure by rotation of jobs in the context of the
system of warnings and medical surveillance which should have been operating
simultaneously, and protecting employees from anything worse than trivial
symptoms.
Each
plaintiff alleged excessive exposure. Taking Cudlip as an example, the writ
asserted that the plaintiff “was exposed excessively to vibratory
tools”, and in the statement of claim the same allegation was made in
marginally different language, “the plaintiff was persistently exposed to
excessive vibration of a character and over periods likely to cause him
injury”. Thereafter particulars of “exposure to excessive
vibration” were given. This exposure was said to have caused VWF. Very
similar, if not virtually identical, allegations were made in the other cases.
Thus in Stokoe the allegation was “exposure to excessive occupational
vibration”: in Martin it was alleged that the exposure was to
“sustained occupational vibration”: in Lamb exposure was to
“vibration as aforesaid”, meaning “considerable
vibration”. In Nullis the claim was based on the consequence of having
used “tools throughout the average shift and when he did overtime work
which “vibrated continually whilst in use”. In Carver the
allegation was based on the defendant’s failure “to take any or any
adequate steps to ensure that vibration from the use of such tools was within
safe levels”, and Wright alleged that he was “exposed to continuous
and considerable vibration”. It was implicit in these allegations that
for the plaintiff to succeed it was necessary for him to show that his level of
exposure was greater than a prudent employer should have allowed. This
approach was correct.
Before
Judge Stephenson Mr Maxwell contended that the defendants would have fulfilled
their duty to take reasonable care for the safety of employees using vibratory
tools by imposing a limit on their exposure in accordance with the only
guidance available during the mid 1970s, the draft for the development for a
British Standard, referred to throughout as DD43. After hearing and
considering a great deal of evidence about DD43, and its limitations, the judge
concluded that the defendants “could not shelter behind” it,
meaning that DD43 would not - and acting prudently the defendants would have
appreciated did not - provide any sound or reliable guide to an appropriate
level of exposure, not least because the defendants had not themselves carried
out any epidemiological survey of their employees. The standards of safety
set in DD43 were too low. Mr Walker realistically accepted that for the
purposes of this litigation he could not hope to persuade us to set aside the
judge’s express findings about DD43.
Having
rejected DD43 Judge Stephenson did not consider any alternative, permissible,
level of exposure: this was consistent with his conclusion that any exposure
which exceeded de minimis should have been reduced by rotation. He said
“I understand an argument that it might be verging of the absurd to
insist on rotation of jobs when a man was only using a vibrating machine for
half an hour per week, although in extreme cases it might be necessary. We
are, however, dealing with men who frequently use such machines, and if the
defendants had conducted their survey they would have found that a substantial
proportion of their workforce were at risk from VWF from such exposure. They
can only properly be exempted from attempting rotation where the exposure was
minimal, or in lawyers’ terminology, de minimis”. Faced with the
rejection of DD43, and the de minimis conclusion adopted by the judge, Mr
Walker was prepared to advance a different, lower level of exposure above which
rotation should have been arranged, referred to before the judge, but not
central to the defendants’ submissions because of the focus on DD43.
In
1986 the International Organisation for Standards produced standard guidelines
for “the measurement and assessment of human exposure to hand-transmitted
vibration” (ISO 5349). This was followed in 1987 by BS 6842, the British
Standard guide to “measurement and evaluation of human exposure to
vibration transmitted to the hand”. This replaced DD43, which was
withdrawn. It took account of work currently being carried out domestically
and internationally. It reflected a “consensus based upon data available
from practical experience and laboratory experimentation in the field of human
response to hand-transmitted vibration”, adding that it was difficult to
propose “a firm standard regarding the evaluation of such
vibration”. Among the appendices was Table 5 to which I shall return in
due course.
The
research continued. It did not of course include any epidemiological survey of
their employees by the defendants, but the International Standards Organisation
produced further guidelines (ISO 5349: 1989) and the British Standards
Institution considered the problem in 1991 (BS 7482). Eventually in 1994 the
Health & Safety Executive produced a detailed booklet, “Hand-Arm
Vibration”. This booklet provided “guidance for those who have
duties under the Health & Safety at Work Act 1974 and other relevant
legislation”. It was intended “to be a framework document and
source of reference for use by all those involved in identifying and
controlling the risks of hand-arm vibration syndrome”. It claimed that
it was “fairly” comprehensive. Crucially it referred back to Table
5 of the British Standards 6824 of 1987. In the course of identifying
“hazardous work and assessing risk” the booklet noted
"Vibration
‘dose’ received by the worker over a typical working day depends on
the duration of exposure as well as the vibration magnitude. To allow
different exposure patterns to be compared, they are adjusted or
“normalised” to a standard reference period of 8 hours, however
long the actual exposure period." (paragraph 18)
"Programmes
of preventive measures and health surveillance are recommended where
workers’ exposure regularly exceeds an A(8) of 2.8 m/s 2. (paragraph
21)” This was the reference to BS 6842: 1987.
“A
preventive programme should control the risk of injury if introduced where
there is regular prolonged use of tools likely to be hazardous, or where it is
known that vibration exposure will exceed the actual level in paragraph 21.."
(paragraph 22).
Although
the process of calculating any vibration “dose” is described in
technical detail in the 1994 booklet, for present purposes it is necessary only
to understand the elementary features which go to make up the relevant
calculations.
The
first figure is the average amount of time spent by the plaintiff using
particular vibrating tools each day, and the second assessment is the vibration
magnitude of these tools. These figures enable the calculation of the level of
exposure during the course of an eight hour working day to be completed. In
effect therefore the judge was required to make a number of findings on the
evidence available to him. I do not underestimate the difficulties of doing so
when the matters being investigated went back so many years and when many of
the conclusions depended on the judge’s evaluation of the credibility of
any particular plaintiff.
After
considering the latest research the 1994 booklet focused on a particular figure
in Table 5 of BS 6842: 1987 as the level of exposure requiring action by
reduction or rotation. It was not to be regarded as completely
“safe”. If the figures were exceeded, or the use of hazardous
tools was regular and prolonged, preventive measures and surveillance were
recommended: if the figure were not exceeded then the warnings and surveillance
identified by Judge Stephenson at the first hearing should have reduced any
risk arising from the fact that the action level in BS 6842: 1987 was not
“completely” safe.
Table
5 of BS 6842: 1987 sets out a series of frequency weighted vibration
acceleration magnitudes expressed in metres per second squared and links those
figures to the working day and working life of an individual using hand
operated vibrating tools. It is unnecessary to set Table 5 out in detail but
reference may be made to it in bundle C at page 411or appendix A to BS 6842:
1987.
_________________________________________________________________
Table
5. Frequency weighted vibration acceleration magnitudes (m.s
-2
r.m.s)
which
may be expected to produce finger blanching in 10% of persons exposed
____________________________________________________________________
Daily Life-time
exposure
exposure
average
6 months 1 year 2 years 4 years 8 years 16 years
____________________________________________________________________
8h
44.8 22.4 11.2 5.6
2.8 1.4
_____________________________________________________________________
Therefore
in summary if a man were regularly exposed to an acceleration magnitude of A8
2.8 ms
2
there
was a 10% chance that he would develop finger blanching within eight years.
Explaining the point in different language, 10% of such employees would be
expected to do so. A margin of error has to be allowed for all such figures,
and the precise date of onset would inevitably be uncertain and vary from
individual to individual. Many individuals would not suffer any symptoms at
all. In its earliest manifestations at least, finger blanching causes no
interference with work or social activity. It is not a serious condition. The
1994 booklet describes it as “a white discolouration of the fingers
usually followed by a red flush”. If discovered in reasonable time it
should regress. A proper warning system would have included reminders to
employees in whom finger blanching developed at least to seek proper advice
about it. I shall return to the precise terms of an appropriate warning later
in this judgment.
Mr
Hendy pointed out that whatever the value of Table 5 in general, the defendants
were employees with special characteristics. These included a vast workforce
and huge resources. They were also the largest users of vibrating tools.
However VWF is caused by physically handling vibrating tools. Nothing in the
evidence suggests that the resources or size of the workforce has any
relevance. Mr Hendy also argued that Table 5 was prepared in 1987 without the
benefit of an epidemiological study made by the defendants. On the other hand
at one stage in the argument he acknowledged that by 1994 (that is the year
when the Health & Safety Executive booklet was produced) standards would
have been as stringent as if the absent epidemiological study had been
completed. He later understandably modified this concession, accepting only
that in the absence of any other evidence the Health & Safety Executive
booklet would have produced the same result whether or not an epidemiological
survey had been carried out by the defendants. Despite his skills Mr Hendy
could not avoid the forensic problems created by an opponent pitching his own
case as modestly and sensibly as Mr Walker. DD43 having failed to attract the
approval of Judge Stephenson, Mr Walker accepted that working conditions from
1973 onwards, and throughout the 1980s, could be judged by the standards laid
down as late as 1994.
Mr
Hendy pointed out that Table 5 demonstrated that exposure at A8 1.4 ms
2
would
produce finger blanching in the same proportion (10%) of employees after
sixteen years. He relied on the well known fact that many employees of the
defendants anticipated a life time of work in the industry. Developing this
argument Mr Hendy suggested that if any level above de minimis were appropriate
then BS 6842: 1987 provided the appropriate level of exposure which was that
symptoms did not “usually occur” with a frequency weighted
acceleration below about A8 1 ms
2
In effect this would mean that no employee could use any vibrating tool for
very much longer than one minute per shift. An employer is required to take
reasonable care for the safety of his employees: that duty does not extend to
ensuring working conditions which are wholly risk free, at any rate in relation
to risks where the adverse consequences are not serious. In any event the risk
expectation based on acceleration magnitudes at A8 2.8 ms
2
should amply have been covered by the introduction of warnings and surveillance
after 1975. And after reflection I have found it difficult to see how an
exposure level of A8 1 ms
2
would not of itself qualify as de minimis. At this extremely limited rate of
use one is bound to wonder how any industry could possibly survive. I have
found no direct evidence on the subject but I am prepared to infer that it
would be wholly impracticable, whether or not the permissible daily exposure
could be concentrated on one day each week so as to produce a total weekly
exposure lasting 6 minutes.
The
first question is whether Judge Stephenson was right to conclude that the
defendants were liable to any plaintiff who suffered VWF from any post 1973
exposure which went beyond de minimis, and thus was incapable of reduction by
rotation. In my judgment his conclusion was wrong. The error stems from
approaching the findings that by January 1973 the defendants should have been
aware of the risks of VWF, and thereafter have taken precautions to reduce that
risk, as if it followed that the absence of precautions led to the conclusion
that exposure at any level was negligent. The judge explained “they did
owe a duty to all using such tools to take reasonable care for their safety,
and I reject the argument that the plaintiffs have to establish
‘excessive exposure’ in the sense that exposure above an
established safe limit has to be demonstrated”. The defendants’
argument however is that - ignoring any other possible basis for liability -
they were not to be held liable to any plaintiff whose exposure was limited to
the levels which could reasonably be considered “safe” in the light
of DD43, or BS 6842: 1987 as adopted by the Health & Safety Executive in
1994.
Although
it is commonplace that employers owe a duty of care at common law to provide
safe plant and appliances for the use of their employees, the standard required
of them is not absolute but reasonable care. Thus in
Paris
v Stepney BC
[1951] AC the plaintiffs’ claim succeeded, in essence, because he was
known by his employers to have only one sound eye and they failed to provide
him with appropriate goggles. The claim did not succeed on the basis that
goggles should have been provided for anyone working in the same process as the
plaintiff although, obviously, being rendered blind in one eye is a very
serious injury even for a man with two sound eyes. Not every risk to safety
can be eliminated. Work underground at a coalface is dangerous, but liability
does not automatically attach to every accident resulting in personal injury.
All this is trite law.
Examining
it in the particular context of the issues which arise in the present appeal,
the judge found that from January 1975 the defendants were under a duty to
their employees to give appropriate warnings about the risks of VWF created by
the use of vibrating tools. If the duty of employers like the defendants was
to ensure that their employees were never exposed to any such risks, or any
risks of which they were negligently left ignorant, a proper warning system
could never be sufficient to satisfy their obligation to take reasonable care.
Yet it is sometimes the only practical course. Moreover the basic, almost
standard precaution of warnings is not always required whenever there is a
perceived risk to safety. In the context of VWF caused by the use of vibrating
tools, in
White
v Holbrook Precision Castings Limited
[1985] IRLR 215 Lawton LJ considered the principle against which to test the
problem about what, if anything, should be done by an employer “if he is
offering a job to somebody in an occupation which does carry risk to health and
safety”. After considering the well know observation of Devlin J in
Withers
v Perry Chain Co Limited
[1961] 1 WLR 1314 (where there was exposure to the risk of dermatitis) Lawton
LJ continued
"Generally
speaking, if a job has risks to health and safety which are not common
knowledge but of which an employer knows or ought to know and against which he
cannot guard by taking precautions, then he should tell anyone to whom he is
offering the job what those risks are if, on the information available to him,
knowledge of those risks would be likely to affect the decision of a sensible,
level headed prospective employee about accepting the offer."
What
he did not suggest was that the job in question should be discontinued, and on
the basis of the factual findings made by the judge, the court rejected the
submission that wherever there was a “slight risk, it was the duty of the
employer to tell the prospective employee what the risk was”.
The
problem with the conclusion that any exposure beyond de minimis provided a
sufficient basis for a finding of liability was that it did indeed apply to
every such employee, whether his exposure level was just marginally or wildly
in excess of de minimis. Nothing in the evidence suggested that the use of
vibrating tools after 1973 should have been banned. The employees were not
exposed to an injury of such magnitude that the risk should have been averted
by virtually prohibiting the use of vibrating tools throughout the industry, or
permitting only use which could properly be described as de minimis. In
reality, although every member of the workforce using vibrating tools was
exposed to the risk, only a small proportion would have gone on to develop the
condition. In its early manifestations the consequent injury was not very
serious, and adequate protection would have been provided by a proper warning
and surveillance system. In my judgment the judge did not sufficiently
appreciate the consequence of his own findings that by 1975 an adequate system
of warnings and surveillance should have been in place to warn staff who might
develop symptoms about the appropriate ways to report, deal with and reduce
them. There is no logical reason and nothing in the evidence to explain why
the exposure of every employee using vibrating tools, other than casually,
should automatically have been reduced, whether by rotation or otherwise, or
how the necessary reduction in the exposure levels of employees who use these
tools (sometimes in cramped conditions) could be achieved without inevitably
increasing the exposure levels of those brought in to replace them and finish
their work. De minimis exposure for all the defendants’ employees was
neither practicable nor reasonable.
On
the basis of Mr Walker’s concessions, all the plaintiffs whose cases are
presently under consideration, except for Stokoe, established that the level of
their exposure was excessive and should have been reduced by rotation. That
however does not mean that liability on this basis is established by any
employee of the defendants who developed VWF and who can show that his exposure
was more than the minimal.
This
conclusion leads to the consideration of the second question, whether it is
appropriate to attempt to identify the level of exposure which should have been
reduced by job rotation. As already noted, the judge rejected DD43. Despite
Mr Hendy’s arguments, which I shall not repeat, assuming that the
defendants had been alert to the risk of VWF, I am satisfied that standards
higher than those advised in the 1994 booklet should not be imposed on them.
This conclusion is not intended to lay down any guidelines about appropriate
levels of exposure in other employments. All it means is that when considering
the reasonable safety of those employees exposed to vibrating tools the 1994
booklet provides a standard which it would have been reasonable for the
defendants as prudent employers to apply when considering the appropriate level
of permissible exposure. However after January 1976 any level of exposure in
excess of that advised by the handbook required job rotation, in addition to
warnings, surveillance and the other precautions identified at the first
hearing.
In
reality this conclusion is likely to be of limited value to the defendants.
The individual plaintiff’s working history over a lifetime (which has
been the basis for analysis to date) may demonstrate that to take an average
exposure throughout the whole working life time may be misleading. For
example, Martin’s exposure throughout his working life from 1956 to 1988
was estimated at an average in excess of A8 2.8 m/s
2.
Therefore
his claim in relation to job rotation is not in issue in the appeal. However
his working history shows that he spent something like ten or eleven years
working as a development worker from about 1973 or 1974 when his exposure was
significantly higher than his average lifetime exposure. He began to develop
relevant symptoms towards the end of this period of exposure. The precise
details are unimportant to Martin’s case but where there is evidence of a
higher level of exposure than A8 2.8 m/s
2
directly connected with the onset of symptoms of VWF a claim based on negligent
failure to organise job rotation should not fail merely because the individual
plaintiff’s lifetime average exposure dropped below the A8 2.8 m/s
2
level. Consistently with reliance on the 1994 booklet Mr Walker did not appear
to argue to the contrary. In a passage quoted earlier the booklet itself
explains that a “preventive programme” (which included job
rotation) “should be introduced where it is known that vibration exposure
will exceed the ‘action level’, A8 2.8 m/s
2
“
.
In other words job rotation should have formed part of a preventive programme
where it was or should have been known that the vibration levels exceeded A8
2.8 m/s
2
.
If they did so for any significant period of employment the fact that an
individual employee’s lifetime average exposure fell below A8 2.8 m/s
2
would
not provide the defendants with an unanswerable defence to a claim based on
negligent failure to reduce exposure.
Warning
I
can now turn to the judge’s conclusion about the nature of the warning
which the defendants should have provided. There was very little direct
evidence: the judge had to form his own view. He recognised that the warning
should not be “alarmist”. Using DD43 for this purpose only, he
suggested that an appropriate warning would be “some operators of
vibratory tools may develop tingling, numbness and blanching of the fingers,
the effects of which in some cases can lead to permanent loss of dexterity of
the hand. If you suffer from any of these symptoms, or think you may be
suffering from them, report the matter immediately to management and medical
staff”.
Mr
Walker submitted that this warning was too wide and that the reference to
tingling and numbness was unnecessary. Some tingling and numbness are almost
inevitable after use of vibratory tools. BS 6842: 1987 suggested that medical
advice should be sought if there were “attacks of white or blue finger or
long periods of tingling and/or numbness”. The 1994 Booklet suggested
that there should be “a system for workers to report any episodes of
finger blanching (which should be investigated) and an adequate record keeping
system of both medical examinations and any episodes of finger
blanching”. In other words the real focus for attention in the
literature was finger blanching, which was consistent with the Taylor-Pelmear
classification (set out below) that stage 1 of VWF was reached when there was
blanching of one or more fingertips.
The
terms of any appropriate warning must be considered in the context of the
practical realities of work in the coal industry. A warning to avoid a problem
after it has developed is usually too late. However in the case of VWF, even
after blanching has occurred there is no interference with work or social
activities, at any rate while its remains at stage 1. If caught then, the
condition should improve without leaving long term problems. Moreover in this
industry, for many of the men who worked underground in great danger, the
prospect of reporting a minor degree of tingling or a small amount of numbness
at the end of a tough shift would be demeaning, and the same general approach
would be taken by those working away from the immediate dangers underground but
engaged in heavy exhausting activity. That being so I doubt not only whether
more than a tiny proportion of employees would heed a warning to report
tingling or numbness, but also whether the colliery nurse or medical assistance
would or could realistically have very much more to say than something like
“watch it, and if you start getting any white finger, come and see me
again”.
To
be valuable warnings must be practical and useful, that is, they should be
couched in terms which carry weight with the person or persons to whom they are
given. Accordingly I have concluded that a sensible warning in the context of
VWF in the coal industry would have been to the effect
"If
you are working with vibrating tools and you notice that you are getting some
whitening or discolouration of any of your fingers then in your own interests
you should report this as quickly as possible. If you do nothing you could end
up with some very nasty problems in both hands."
Conclusion
In
the result all these appeals on liability will be dismissed, although
Stokoe’s claim succeeds on the more limited basis that he was not given
any warning of the risks when symptoms began in 1985, and would immediately
have sought and paid attention to medical advice. It is established by the
findings in relation to Stokoe that he would have ceased to use vibratory
tools. It may be doubted whether that would have been true of many of the
defendants’ employees. Without in any way impugning the findings made in
Stokoe’s case, the general question whether robust men would have been
prepared to give up well paid work to avoid the risk of VWF, at any rate in the
earlier of its stages, is clearly one which should be approached by the court
with great care. For those who would not have heeded the warnings, the
critical questions requiring resolution are likely to be whether their exposure
was excessive and caused VWF.
Quantum
The
adverse effects of VWF range from intermittent tingling or intermittent
numbness which can be readily cured to permanent painful problems with both
hands resulting in reduced manual dexterity and consequent interference with
work patterns as well as the ordinary enjoyment of life.
The
symptoms are now assessed by reference to classifications, the Taylor-Pelmear
classification by stages, and since 1986, the Stockholm workshop scales which
classify a vascular and a sensorineural component. These classifications are:
TAYLOR-PELMEAR
STAGE
CONDITION
OF DIGITS
WORK/SOCIAL
INTERFERENCE
0 No
blanching
None
OT Intermittent
tingling
None
ON Intermittent
numbness
None
OTN Tingling
and numbness
None
1 Blanching
of one or more
None
fingertips,
with or without
tingling
and numbness
2 Blanching
of one or more
Slight
interference with home and
fingers
with numbness
social
activities, no interference
usually
confined to winter
with
work
3 Extensive
blanching,
Definite
interference with work, at
frequent
episodes in
home
and with social/recreational
summer
and winter
activities
4 Extensive
blanching most
Occupational
change to avoid further
fingers,
frequent episodes
vibration
exposure because of severity
in
summer and winter,
of
signs and symptoms
finger
ulcerations
THE
STOCKHOLM WORKSHOP SCALES
VASCULAR
COMPONENT
STAGE
GRADE
DESCRIPTION
0 No
attacks
IV Mild
Occasional
attacks affecting only the tips of
one
or more fingers
2V Moderate Occasional
attacks affecting distal and
middle
(rarely also proximal) phalanges of
one
or more fingers
3V Severe Frequent
attacks affecting all phalanges of
most
fingers
4V Very
Severe
As
in stage 3 with trophic changes in the
fingertips
SENSORINEURAL
COMPONENT
STAGE
DESCRIPTION
OSN Vibration-exposed
but no symptoms
ISN Intermittent
numbness with or without tingling
2SN Intermittent
or persistent numbness, reduced sensory perception
3SN Intermittent
or persistent numbness, reduced tactile
discrimination
and/or manipulative dexterity
Note: The
staging is made separately for each hand. The grade of disorder is indicated
by the stage and number of affected fingers on both hands.
The
effect of blanching, white discolouration of the fingers, has already been
given. Tingling speaks for itself, so does numbness, although the 1994 booklet
notes that numbness may occur in association with finger blanching or
independently, and that if it occurs apart from finger blanching it is
“of prime interest as this may indicate neurological involvement”,
a feature identified in the Stockholm Workshop Scales.
These
classifications provide a valuable starting point in the assessment of damages,
the valuation of each claim ultimately depending on the judge’s view of
the true extent of the symptoms and their impact on the life of each individual
plaintiff. The fact that the classifications themselves refer to the
“fingers”, or the “digits”, and indeed that the name of
the condition itself is Vibratory White
Finger,
may divert attention from the fact that in a severe case this injury should
properly be regarded as damaging the hand or hands rather than being confined
to the fingers.
The
appeals in the lead cases have highlighted four particular features which are
likely to arise in many of the other claims. These are the level of general
damages in VWF cases, the appropriate discounts (if any) to allow for
non-negligent exposure before 1975, and for continuing exposure after that date
below the level which could be criticised as negligent, that is, post 1975
fault free exposure, an issue raised during the hearing of the appeal itself.
In addition the allowance made in some of the claims for the disadvantage of
the plaintiff on the open labour market has been examined. The defendants have
left open whether claims for additional expenditure or loss of amenity causing
loss in subsequent cases ought properly to be included but no point of
principle has arisen and we were not invited to interfere with the assessments
made by Judge Stephenson.
General
Damages
Mr
Walker submitted that the best indication of the appropriate level of damages
was to be found in the guidelines published by the Judicial Studies Board (3rd
Edition, 1996). To counter the possibility that we might attach excessive
weight to this publication, our attention was drawn to the observation of
Staughton LJ in
Arafa
v Potter
[1994] PIQR 73, regularly deployed when the Judicial Studies Board Guidelines
are inconvenient to one or other party:
"We
have been referred to the guidelines of the Judicial Studies Board. They are
not in themselves law; they form a slim handy volume which anyone can slip into
their briefcases on their way to the County Court or travelling on Circuit.
But the law is to be found elsewhere in rather greater bulk. In this Court we
ought to look to the sources rather than the summary produced by the Judicial
Studies Board."
To
the extent that this observation implied that the guidelines were in some way
superficial, or that the Court of Appeal should disdain to consider them when
reflecting on the appropriate figure for general damages then, in accordance
with Lord Woolf MR in his foreword to the 3rd edition, I disagree. If the
observation merely intended to convey that the Judicial Studies Board lacked
authority to formulate levels of damages, or to underline that the guidelines
prepared in this publication did not bind the Court of Appeal, Staughton LJ was
obviously right. The Judicial Studies Board has no such authority.
The
value of the work is that it represents a close analysis of the relevant
material by a group of experienced practitioners. In doing so
"It
has not confined itself to consideration of reported cases, but has, as it did
for previous editions, considered many decisions and settlements which have
been drawn to the attention of its members by judges and professional
colleagues. It seems that those who are responsible for the reporting of cases
in law reports and journals have tended, for quite understandable reasons, to
concentrate on the exceptional cases, so that reference only to those sources
may produce a somewhat distorted picture."
The
Working Party goes on the acknowledge the assistance received from
"The
very large number of judges, practitioners and others working in the field of
personal injury litigation who have taken the trouble to offer comment,
criticism and encouragement."
The
value of such an analysis for practitioners advising their clients, and for
judges assessing damages when the parties have been unable to agree them, is
obvious. One inherent limitation is highlighted by the observations of the
Working Party itself. When the relevant material is limited the guidelines
provided by the Working Party are inevitably based on less secure foundations
than they are in those cases where the injury is commonplace. In the
particular area of VWF the number of known cases is, in relative terms, very
small indeed. We have been provided with a compendium of the known decisions
on this topic.
The
text of the Judicial Studies Board Guidelines reads
“Cases
of Vibration White Finger
This
is a particular form of Raynaud’s phenomenon caused by prolonged exposure
to vibration.
(i)
Extensive blanching of most fingers with
episodes in summer and winter of such
severity as to necessitate changing occup-
ation to avoid further exposure to vibration.
£4,000
to £6,000
(ii)
Blanching of one or more fingers with numbness.
Usually occurring only in winter and causing
slight interference with home and social activities.
£2,000
(iii)
Blanching of one or more fingertips, with or
without tingling and numbness.
£900”
It
is immediately clear that the guidelines are based on the Taylor-Pelmear
classification and indeed at the highest or most severe case, summarised in
(i), reflects an amalgamation of Taylor-Pelmear stages 3 and 4.
As
far as counsel can discover, damages for VWF has never been considered in the
Court of Appeal. The Judicial Studies Board analysis appears to have been
based substantially (with an appropriate update) on the assessment made by
Kilner Brown J in
Heal
v
Garringtons
Limited
at Birmingham in 1982. However the defendants in that case, Garringtons
Limited, did not contend for this approach in
McFaul
v Garringtons
Limited
(the name given to a group of fifteen cases) tried by Hodgson J in November
1984, where, after a concession by leading counsel that the award made to Mr
Heal was “too low”, general damages were assessed at significantly
higher levels than they were in
Heal,
no doubt in part also because Hodgson J was in a position to examine the
symptoms and problems of a variety of injured plaintiffs and more fully to
appreciate the practical consequences of VWF.
Before
Heal there had been two decisions in 1979,
Musto
v Saunders Safety Valve Co
(May
1979, unreported) and
Murphy
v HMA representing the Forestry Commission
(May
1979, unreported). Thereafter the relevant decisions include
Sheppard
v Firth Brown Limited
(a group of plaintiffs, where damages were assessed by McCulloch J in April
1985)
Knight
v Ford Motor
Company
Limited
(September 1991)
Bowman
v Harland & Wolf Plc
(Carswell J, in Northern Ireland, examining another group, in October 1991)
Butler
v Liverpool City Council
(October 1992)
Bir
v
Dunn
AL & Co
(June 1993)
Condra
v Norcross Plc
(July 1993)
McNamara
v Liverpool City Council
(March 1996)
Glorman
v Ford Motor Company Limited
(May 1996).
Two
further decisions since Judge Stephenson gave his judgment in the present case
are
Cotton
v Bruhl (UK) Limited
(March 1998) and
Hall
& Others (six plaintiffs in all) v British Gas Plc
(April
1998).
While
recognising the difficulties inherent in comparing a large number of different
plaintiffs and their individual manifestations, these decisions have led me to
conclude that at first instance there has been a general tendency to produce
assessments of general damages for VWF resulting in more generous awards than
the figures reflected in the JSB Guidelines. Indeed it is not insignificant
that in the most recent case,
Hall,
both parties agreed that the JSB Guidelines were indeed “too low”.
I
agree with them. In my judgment the approach to general damages typified by
Heal,
and reflected in the JSB Guidelines, does not sufficiently acknowledge the
severity of the disability resulting from VWF, particularly at scale 4 in the
Taylor-Pelmear classification and 3V and 4V or 3SN in the Stockholm Workshop
scales. By these stages what may reasonably be regarded at the outset as
minor inconvenience (no doubt irritating and mildly troublesome) now involves a
degree of significant permanent disability. The fact that the symptoms can
arise constitutionally does not mean that they lack significance where it is
established that they have been induced by conditions at work.
It
would nowadays be sensible to approach the assessment of general damages by
considering both the Taylor-Pelmear and the Stockholm Workshop classifications
in relation to each hand as the fairest way of producing a broad indication of
the relevant degrees of injury and disability, and then reflecting on their
overall impact on the individual plaintiff. This was the approach adopted by
Judge Stephenson.
For
present purposes I can see no advantage in rehearsing the evidence or the
judge’s findings about the condition of each plaintiff in fresh language.
In the passages which now follow I have largely, and gratefully, adopted his
description of the essential facts. In each case, where relevant, he
discounted for what was described as “pre 1975 damage”, that is,
non negligent exposure before 1975. For the purposes of considering the
appropriate levels of general damages for VWF, the important assessment is the
figure reached before any such discount is made. Neither side advanced any
argument about the figures calculated by the judge as a fair representation for
the “pre 1975” discount.
Disadvantage
on the Open Labour Market
Before
dealing with the individual cases it will be convenient to comment generally on
the awards under this head. The principles are well known and need no
repetition. The judge began his assessment by noting that in communities where
mining was a major source of local employment, even a fit miner, made redundant
for any reason, would be likely to have difficulties on the open labour market.
The contraction of the coal industry was likely to create unemployment problems
among miners anyway and miners who were victims of contraction in their
industry would be joining a long job queue. The judge also acknowledged that
any former miner suffering from a prescribed disease such as VWF would be less
immediately attractive than an individual who did not, and that it would
normally be unwise for him to seek employment which might expose him to work
with vibrating tools. To these general features it is perhaps useful to add a
virtually self evident suggestion that employees with the most severe symptoms
of VWF are more likely to run into difficulties in the open labour market than
plaintiffs suffering from minor symptoms at the lower end of the range.
Finally the question whether VWF in fact plays any significant feature in an
individual plaintiff’s disadvantage on the labour market requires close
examination where the individual plaintiff additionally suffers from other more
serious disability, whether arising for constitutional reasons or consequent on
the general risks inherent in the mining industry. If so VWF at the less
severe levels may not add anything significant to the real causes of the
plaintiff’s problem with future employment.
I
shall now deal with the claims by the individual plaintiffs, taking them in
order of severity, and beginning with the worst case.
Wright
was
born in October 1942. He gave up work with the defendants when he was 46. His
problems with VWF began in 1975. The Taylor-Pelmear assessment was scale 3: on
the Stockholm scales the levels were assessed at 3R5/3L5 and 2SN. The
consequences are serious, and this should properly be regarded as a bad case of
VWF.
All
the digits on both hands are involved. When exposed to a drop in temperature
all eight fingers whiten down to the metacarpophalangeal joint and both thumbs
become white down to a line between the interphalageal joint and the
metacarpophalangeal joint. All ten digits became white and numb, then as
circulation returns, significant, sometimes excruciating, pain develops.
It
is essential for him to keep his hands warm, so outdoor activity is difficult.
He needs help with the garden, where once he had grown his own vegetables to
exhibition standard. He can only fish in winter, and even when he does so his
manual dexterity is reduced, and he has to beware any sudden drop in
temperature. When walking his dog in winter there is a risk of pain developing
in his hands.
After
he ceased work for the defendants he tried a number of different jobs, and
largely through his own determination he managed to remain in regular
employment, although there were two periods when he was unemployed. However as
a practical example of the difficulties which he faced, when he was trying to
run his own fruit and vegetable business he used to take a filled hot water
bottle to work with him to try and keep his hands warm. Eventually he gave up
this work.
His
condition is permanent.
Judge
Stephenson assessed general damages at £14,000. He reduced the figure by
£4,000 to allow for pre 1975 damage.
This
plaintiff has suffered steady deterioration in the condition of both hands. He
is now and will be permanently significantly disabled, at risk of and liable to
significant pain, sometimes severe, for the rest of his life. For such a
serious case of VWF £14,000 for general damages was an entirely
appropriate assessment.
The
judge also awarded £10,000 for Wright’s disadvantage on the open
labour market. The award has been criticised. The attack begins by pointing
out that the judge rejected any claim for loss of earnings to the date of
trial. However as the short narrative indicated Wright has been unable to
remain in the same work, and there were two periods when he was unemployed. He
is now working as a security guard. He has a number of other disabilities.
However the judge concluded, and I agree with him, that the degree of this
plaintiff’s VWF would undoubtedly make it more difficult for him to find
a new job if he were to lose the present one, and that his condition would
preclude virtually any work which involved outdoor activity. Although the
plaintiff is working as a security guard at present the risks which he faces in
the open labour market properly attracted an award. The judge’s
assessment is not open to criticism.
Martin
was
born in August 1935. He spent his entire life in the coal industry, taking
redundancy in March 1988, having been “through the wars” in the
pits. He first became aware of problems with his hands in the early 1980s.
The
Taylor-Pelmear assessment was scale 3: he was assessed at 3R5/3L5 and 3SN on
the Stockholm Scales.
Martin
suffers from a number of additional problems, largely with his chest, and also
with his knee. VWF causes problems with ordinary life, and manual dexterity.
He regularly wears gloves both in summer and winter. His condition is
permanent.
Judge
Stephenson assessed general damages at £10,000. He reduced the figure by
£750 to allow for pre 1975 damage. In my judgment this was an appropriate
assessment.
An
immediate comparison between Wright and Martin appears to show that on the
basis of the scales Martin’s injuries were marginally more severe. For
example on the sensorineural component of the condition he was assessed at 3SN
rather than 2SN. However it is clear that Wright’s condition was and is
worse than Martin’s, who is an older man. In other words the different
level of awards reflects a painstaking assessment of the overall impact of VWF
on these two individuals.
Lamb
was born in October 1936. He worked in the coal industry for 14years from 1971
or 1972. He returned to pit work in 1976, ending his employment in 1985.
Symptoms developed during the 1980s, although the precise date is a little
uncertain.
The
Taylor-Pelmear assessment was scale 2: he was assessed at 2R4/2L4 and 2SN on
the Stockholm scale although the four fingers on each hand were affected to
different degrees. In addition there is a complication in his hands due to
arthritic change unconnected with his employment with the defendants, and he
has a variety of other problems.
The
combined consequences of arthritis and VWF are significant. VWF affects him on
cold days in the summer and approximately twice a day during the winter. He
has difficulty changing plugs and doing other electrical jobs or work involving
manual dexterity. Thus he has an attachment to his trouser zip. He was a
keen angler who has had to give up because of the effect of cold on his hands
and difficulty putting maggots on the hooks. He agreed that most of the time
he could keep his hands warm, and that they felt normal enough.
Judge
Stephenson assessed general damages at £8,000. The pre 1975 deduction was
£500. One slight complication with analysing the full extent of these
damages is that in his judgment the Taylor-Pelmear scale was recorded at scale
3 and the relevant Stockholm scale were 3R4/3L4 and 2SN. We were told that
these were typing errors. The further complication was the impact of
constitutional arthritic change on these VWF damaged hands. However Mr Walker
sensibly suggested that his argument for a reduction in damages stood or fell
with the outcome of the appeal in Martin.
At
the scales noted in the judgment the award was within the appropriate range:
at the corrected levels the figure for general damages was at the top of the
appropriate bracket but not so excessive as to justify interference.
Stokoe
was born in 1954. He is now 44. He started work in the coal industry when he
was 20. VWF symptoms started to develop when he was 31. He was borderline
between 2 and 3 on the Taylor-Pelmear scale and the Stockholm Vascular Scale
which applied to four fingers in each hand, and borderline 3SN/3SN on the
Stockholm Sensoneurological Scale. Neither thumb was affected. His manual
dexterity is damaged. He cannot do intricate work about the house, finding
difficulty changing plugs and so on, or decorating or car maintenance, and his
interest in making model aeroplanes and railways, requiring the use of sharp
knives, is, he believes, no longer practicable for safety reasons. He uses
gloves to keep his hands warm. In summary he is not totally disabled but he
has already suffered from unpleasant symptoms for some years, and although
still only 44 years old, his condition is permanent.
Judge
Stephenson assessed general damages for pain and suffering and loss of amenity
at £8,000. There was no “pre 1975 deduction”. The long
period for which this condition has been and must continue to be endured lead
me to conclude that the award was appropriate on the basis on which liability
was established.
General
damages must be reconsidered on the basis that negligence was established only
on the basis of the failure to warn. The judge was very clear in his findings
about the impact of a warning on Stokoe, underlining that, given his
personality, he would have noted warnings and would have given up work
“immediately the symptoms arose”.
At
one stage in his judgment in the context of warnings, the judge said,
"Thus
on any view ..... the defendants are liable in respect of deterioration from
stage 1 to borderline stage 2 to stage 3 after 1985."
On
this basis Mr Walker suggested that general damages should be assessed on the
basis only of the worsening of Stokoe’s condition after the warning
should have been given and to which he would have responded by avoiding
exposure. In effect there would have been no liability until the symptoms
manifested themselves, and therefore general damages were therefore subject to
a discount for fault free exposure in just the same way as those plaintiffs who
were working before the defendants prior to 1975. This submission was said to
be reinforced by the judge’s finding that Stokoe’s claim should
succeed because he (Stokoe) would have or had given up work immediately he
developed symptoms which he knew were attributable to VWF.
Mr
Walker’s difficulty is that the whole purpose of the warning (even in the
more limited form suggested in this judgment) is that it should be directed to
the moment when the employee becomes aware of finger blanching, which is early
enough in the progress of VWF to arrest it, and by avoiding further exposure to
vibrating tools, produce a recovery. Until that time the symptoms would
normally be too insignificant to attract more than a very limited, token,
award. It would be unrealistic to return the case of Stokoe for further
findings to be made in the light of the defendants’ successful contention
that he was not subject to fault exposure, but only to a failure properly to
warn. In subsequent cases the factual issues will no doubt be more clearly
identified and resolved.
Having
examined the evidence I am not satisfied that the award of general damages
should be reduced on the basis that Stokoe’s claim for excessive exposure
has failed. This figure therefore remains unaffected by the absence of proper
warning in his particular case.
Unfortunately,
ignoring VWF altogether, Stokoe suffers from a large number of other problems,
including deafness. His domestic problems need no recitation in this judgment.
They contribute to the general picture of a very unhappy lethargic individual.
An award of £10,000 was made to reflect Stokoe’s handicap on the
labour market. The judge rejected any claim for loss of earnings to date on
the basis that the plaintiff “gave up a job, made unimpressive attempts
for another, then came to the conclusion ......... that he could not work, a
conclusion which had nothing to do with VWF, and is now in an employment market
which was perforce joined by a large number of the defendants’
ex-employees seeking work. He is suggesting he could do work which, in
setting up the business anyway, he would need to do”. He went on:
“the only way in which loss could be attributable to VWF is in the sense
that the plaintiff, as a man with a serious hearing loss, has not, since he was
ruled fit for employment, been able to look for a fitters job with vibrating
tools”. The judge turned to the question of his deafness, noting that
Stokoe had “lost much of his urge for employment anyway”, adding
“that his deafness would make for difficulties independently of VWF”.
In
summary therefore, the judge found that Stokoe did not really want to work. He
then went on to add that he thought it “unlikely” that this would
persist indefinitely, a finding with which I am not prepared to interfere,
but which is somewhat surprising as the plaintiff has not wanted to work since
1989. More important, in considering whether there was any realistic basis for
a claim for loss of disadvantage on the employment market, the consequence of
liability on the sole basis of lack of warning means that Stokoe should be
treated as someone who would not have worked in any subsequent job involving
vibrating tools. The judge seems to have regarded this feature as providing
support for the claim, but if Stokoe would not allow himself to work with
vibrating tools anyway, the defendants’ negligence would not have
contributed to the problem.
After
analysing the evidence I have been driven to the conclusion that this head of
damage is speculative.
Cudlip
was
born in January 1948. He worked in the coal industry for varying periods,
returning to employment at a pit in 1977, and eventually leaving work through
redundancy in September 1989. The assessment in this case was complicated by
other conditions but, more important, by the judge’s finding that the
plaintiff was not credible in a number of significant respects.
Cudlip
was found to be at stage 2 and fairly low on stage 2 taking the Taylor-Pelmear
staging as “literally” as the judge could. On the Stockholm scales
he was put at 2L2/2R3 and at ISN respectively.
Judge
Stephenson assessed general damages for pain suffering and loss of amenity at
£6,500 - £6,750 and reduced the figure for pre 1975 damage by
£500 - £750. The judge eventually assessed general damages at
£6,000, although for present purposes I am concentrating on the award at
£6,500 - £6,750.
Of
all the cases where general damages were appealed, this caused me the greatest
difficulty. Because there were so many difficulties with credibility, and the
precise analysis of the true impact of VWF, I was driven to conclude that the
assessment reflected a greater degree of sympathy for the impact of VWF on
Cudlip than emerges from the papers. In those circumstances it would not be
right to interfere with the judge’s assessment, although I should add
that if he had considered £5,000 appropriate I would similarly have been
disinclined to interfere.
An
award of £2,500 reflected Cudlip’s handicap on the labour market.
The
scale of disability is not significant. The judge rejected any claim for part
or continuing loss of earnings. It is now over eight years since Cudlip became
redundant. Despite the condition of his hands, and indeed a very much more
significant problem with his back, he was, despite his attempts to conceal the
fact, in regular work.
The
award was described by the judge himself as on the “low side”. It
was made on the basis that if Cudlip lost his work his VWF would make him a
“less attractive proposition” to a potential employer and that he
would be further back in the “job queue”.
Without
minimising it, Cudlip’s condition is not severe. The problem with his
back is much more significant. He is in regular work. Nothing suggests that
his employment is at risk. His claim under this head was speculative. The
award should be set aside.
Nullis
was born in September 1955. He worked for the defendants between 1978 and
1993. He developed VWF by 1985. In the result it was not a bad case of VWF.
The damage is confined to his left, dominant hand on Taylor-Pelmear stage 2:
the Stockholm Scale assessment is ORO 2L4 and 1 ISN.
The
plaintiff’s symptoms are blanching and numbness in the damaged fingers
when exposed to cold, together with irritation and intermittent but not
disabling pain. Manual dexterity is reduced. He has trouble handling small
objects like coins or dealing with his stamp collection, and handling glasses
in the public house he now runs. He can manage the cellar work and decorating
the outside walls. He has given up gardening. He does his best to avoid
letting his hands become cold. His symptoms are permanent.
Judge
Stephenson awarded him £5,000 for general damages for pain suffering and
loss of amenity. There was no further deduction. For a man of 42 years, who
has already suffered from symptoms of VWF since 1985, and whose condition is
permanent, this award, while at the top of the appropriate bracket, is not
excessive.
The
appeal against the award to
Carver
was not pursued on the basis that it raised questions so individual to him that
it could provide no assistance in the resolution of the general issues.
Post
1975 Fault Free Exposure
During
the course of the argument Mr Walker invited us to consider that a further
discount should be made for post 1975 fault free exposure. In summary he
submitted that as the effects of exposure were cumulative the defendants should
not be liable to the extent of the contribution made to the plaintiffs’
condition by levels of exposure which were not in themselves negligent.
Although the question of fault free exposure before 1975 had been considered
and resolved, not only in principle, but in relation to each plaintiff who
worked for the defendants before 1975, this point - the impact of simultaneous
negligent and fault free exposure after 1975 - only arose half way through the
argument. At one stage, no doubt because nothing that had happened before the
judge suggested that this issue was significant, and moreover was not referred
to in the notice of appeal, or the abundant skeleton argument, or even in the
subsequent letter to the court from Mr Walker after he had taken over
responsibility for the defendants’ appeal and had decided to reduce the
issues to be argued, (1st July 1998) Mr Hendy was prepared to accept that in
principle such a deduction would be appropriate. When given the opportunity to
reflect more closely on the point and to produce a written submission on the
topic, Mr Hendy sought leave to withdraw the concession. In my judgment his
application was entirely justified and should be granted.
At
one stage during the hearing, in the belief that we should try to reduce the
number of outstanding issues to be resolved in these cases, I was in favour of
trying to decide the practical application of the principle apparently accepted
by both sides. Even so, I anticipated some considerable difficulty with
applying any principle to the relevant work and medical history of each
plaintiff. Even before Mr Hendy sought to withdraw his concession I started to
change my mind. In reality the exercise on which we would have been embarking
would have been to act as a court of first instance, trying factual issues as
well as deciding legal principles, on the basis of short written submissions.
This would have been unsatisfactory, and if the decision had been adverse to
any plaintiff on this point he would have suffered an understandable sense of
grievance.
In
these circumstances the less said on the subject by this Court the better. The
point remains open.
Buxton
LJ:
I
agree.
Simon
Brown LJ:
I
also agree.
ORDER:
Appeal allowed in respect of Cudlip and Stokoe, all other appeals dismissed;
award of damages and interest in respect of Cudlip to be reduced to
£7,887.40 and in respect of Stokoe to £19,359.97; costs of appeal to
be paid by appellants; legal aid taxation of costs of Stokoe, Cudlip, Lamb and
Wright.
(Order
not part of approved judgment)
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